Application No. 25403/94
by Krzysztof DROZD
against Poland
The European Commission of Human Rights sitting in private on
5 March 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 February 1994 by
Krzyszof DROZD against Poland and registered on 10 October 1994 under
file No. 25403/94;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the observations submitted by the respondent Government on
20 November 1995;
- the information of 8 November 1995 and 27 November 1995 and the
applicant's comments of 30 November 1995;
- the observations in reply submitted by the applicant on
10 January 1996;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant, a Polish citizen born in 1960, is a businessman
residing in Warsaw.
On 22 February 1993 the Siedlce Regional Public Prosecutor issued
a warrant for the arrest of the applicant, suspected of aggravated fraud.
On the same day the applicant was arrested by the police and remanded in
custody. He tried to avoid arrest by hiding in a couch.
On 26 February 1993 the Siedlce Regional Prosecutor declined to deal
with the applicant's appeal against the warrant of arrest. On
9 March 1993 the Siedlce Regional Court (S*d Wojewódzki) dismissed the
applicant's further appeal against this warrant as there were sufficient
grounds to believe that the applicant had committed the offence, based
on testimony of two witnesses and a letter of a bank. The Court
considered that there was a risk of the applicant absconding. The Court
referred to the seriousness of the offence, having regard to the very
substantial sums apparently involved in the fraud.
On 24 March 1993 the Public Prosecutor in the Ministry of Justice
upheld the refusal to entertain the applicant's complaint of
26 February 1993, considering that the applicant's behaviour before and
during his arrest justified the conclusion that there was a risk of
absconding. With regard to the applicant's submissions that his mother
was terminally ill with cancer and needed his care, he observed that in
the past the applicant had not been taking care of her and that her
neighbour was presently doing so. There were also reasonable grounds to
consider that the applicant had committed the offence at issue.
On 2 April 1993 the Siedlce Regional Prosecutor declined to deal
with the applicant's further request for release. The applicant appealed
against this decision, contending, inter alia, that there was no evidence
to support charges against him. On 5 May 1993 the Prosecutor in the
Ministry of Justice upheld the appealed decision as the suspicion against
the applicant was supported by the testimony of two further witnesses and
of the co-accused, and by further documents. In the course of the
investigations new facts had come to light which showed that the
applicant should be charged with further offences. There was a risk of
absconding and collusion, demonstrated inter alia by the fact that in the
course of the investigations computers of one of the applicant's firms
had surreptitiously been taken away from its headquarters, apparently by
the applicant's accomplices. Before his arrest the applicant had sold
his shares in his firm to a third party, apparently in order to avoid
criminal responsibility. The applicant had been refusing to confirm
receipt of a summons to appear before the Public Prosecutor. At the time
of the arrest he had been hiding in the couch. As to his mother's
situation, though it was true that she needed assistance, being ill with
cancer, she was being taken care of by her neighbour and, having a
considerable property, could afford to hire a paid help.
On 12 August 1993 the Siedlce Regional Court prolonged the
applicant's detention until 20 November 1993 as the reasons herefor
continued to exist. The Court referred to the earlier decisions relating
to the applicant's detention. The Court noted that further witnesses had
to be heard. The applicant appealed against this decision, contending
that he required medical treatment and that his mother was terminally
ill.
On 13 August 1993 the applicant was transferred to the prison
hospital in Warsaw. On 31 August 1993 a medical panel of the Central
Hospital of the Detention Centre at Rakowiecka Street examined him and
concluded that he should be released to undergo medical treatment in a
specialised hospital. On 14 September 1993 the applicant was examined
in the Warsaw Medical Academy. On 27 September 1994 he refused to
undergo a biopsy in the Academy as he would have to be taken thereafter
to the prison hospital which, in his view, would not have secured
sufficient medical care.
On 12 October 1993 the Siedlce Regional Prosecutor transmitted the
applicant's appeal against the decision of the Siedlce Regional Court of
12 August 1993 to the Siedlce Regional Court, but failed to include in
the file the opinion of the medical panel and other medical documents.
Subsequently the Siedlce Regional Court transmitted the case-file to the
Lublin Court of Appeal (S*d Apelacyjny) for a decision on the appeal.
On 18 October 1993 the Lublin Court of Appeal upheld the decision
of 12 August 1993 as the evidence sufficiently indicated that the
suspicion against the applicant was well-founded. The applicant's
medical condition, a tumour in the cheek, could not justify his release
as he had refused to undergo treatment in the prison hospital as well as
the biopsy in the Medical Academy. As the applicant's mother now was in
hospital, she did not need his assistance. The Court considered,
however, that the applicant should be allowed to visit his mother in
hospital in the presence of a policeman.
On 4 November 1993 the applicant's mother died. The applicant did
not see his mother before she died and did not attend her funeral.
On 4 November 1993 the applicant complained to the Minister of
Justice that his detention was unjustified as his acts did not constitute
criminal offences.
On 19 November 1993 the Siedlce Regional Prosecutor closed the
investigations and transmitted a bill of indictment to the Siedlce
Regional Court.
On 25 November 1993 the Siedlce prison governor requested the
applicant's release on medical grounds.
On 5 January 1994 the applicant complained to the Siedlce Regional
Court that the Siedlce Regional Prosecutor had not taken any appropriate
action with regard to the recommendation of the medical panel of
31 August 1993. He alleged that the Prosecutor had failed to present
this document to the Lublin Court of Appeal deciding on 18 October 1993
upon prolongation of his detention. He contended that the Prosecutor had
presented to the Court only an opinion of another physician who had not
participated in the medical panel of 31 August 1993. He complained that
he was not receiving appropriate medical treatment and that the prison's
motion of 23 November 1993 had not been dealt with. The applicant
further complained that neither he nor his counsel were granted access
to the case-file.
On 19 January 1994 the applicant received a copy of the bill of
indictment.
On 10 February 1994 the applicant underwent a medical examination.
On 21 February 1994 the Siedlce Regional Prosecutor informed the
applicant that it did not transpire from an internal enquiry that his
medical documents had not been duly presented to the Lublin Court of
Appeal in October 1993.
On 24 February 1994 a medical certificate was issued, stating that
the applicant's condition was worsening and that he should be treated in
a hospital specialised in face surgery. On 8 March 1994 the Siedlce
Regional Court refused to release the applicant. The Court considered
that the suspicion that the applicant had committed the offence at issue
was supported by evidence given by the applicant's co-accused. As to the
applicant's health, the court noted that the doctors had not been
unanimous as to the required therapy; the disease had been worsening in
fact as the applicant refused to cooperate with the doctors. Further
detention would not seriously endanger his health or life as he could be
treated in an appropriate civil hospital without being released.
The applicant appealed against this decision. He pointed out that
his medical condition had not been treated and that it had continuously
been worsening over the last eight months. He submitted that the
Regional Court had not referred to the medical opinion of 31 August 1993,
stating that the applicant should be released to undergo treatment and
operation outside the prison.
On 19 March 1994 the applicant requested to be released on bail.
He submitted that his detention was unjustified as there was no risk of
absconding or collusion. Moreover, his condition called for specialised
medical treatment, which was not available in the prison hospital.
On 24 March 1994 the Lublin Court of Appeal quashed the decision of
8 March 1994 and referred the case back to the Siedlce Regional Court.
The Court of Appeal considered that the medical opinion submitted to the
lower court did not contain information sufficient for a full assessment
of whether the applicant should be released for health reasons.
Moreover, this opinion was prepared by one of the physicians who had
participated in the medical panel of 31 August 1993, which prejudged the
outcome of the examination. Thus another medical examination should be
ordered.
On 29 April 1994 the applicant underwent the examination in
a specialised ward of the Warsaw Medical Academy. A provisional opinion
was issued that his condition necessitated treatment in a university
hospital.
On 18 May 1994 the applicant complained in a letter to the Lublin
Court of Appeal that the Siedlce Court of Appeal was not diligent enough
in dealing with his case. In particular, the Court had failed to
consider the consequences of the medical expert opinion for the further
detention of the applicant.
On 19 May 1994 the Siedlce Regional Court dismissed the applicant's
complaint that it was not territorially competent to consider the case.
On 22 September 1994 the applicant was released. The case was
transferred to the Warsaw Regional Court and is still pending.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he
was not afforded adequate medical treatment. He further complains that
he was not permitted to see his dying mother or to attend her funeral.
Under Article 4 para. 1 of the Convention he complains that he spent
18 months in detention without any examination of whether his detention
was justified.
Under Article 5 para. 1 of the Convention the applicant complains
that his detention was arbitrary as none of the grounds set out in this
provision applied in his case. In particular he had not committed nay
criminal offence as stated in Article 5 para. 1 (c).
Under Article 5 para. 3 of the Convention he contends that his
detention was unreasonably long. He complains that he was not brought
before a judge who reviewed the lawfulness of his detention and to whom
he could have presented his argument.
The applicant complains under Article 5 para. 4 of the Convention
that no authority properly reviewed the lawfulness of his detention.
Every appeal authority only repeated arguments of the lower authority
without any analysis of their well-foundedness.
The applicant complains under Article 6 para. 1 of the Convention
that the judges and prosecutors were biased against him.
Under Article 6 para. 3 of the Convention he complains that his
requests to appoint bookkeeping experts were refused.
Under Article 7 para. 1 of the Convention the applicant complains
that he was charged on account of acts which did not constitute criminal
offences under national law as his acts were in fact usual decisions
taken in the management of his firm.
Under Article 8 of the Convention he complains that all his letters
to and from the Commission and the Ombudsman have been opened and read
by the Regional Court. His other letters have also been opened and read
even after the investigations were closed and the indictment was sent to
court.
Under Article 11 of the Convention the applicant complains that his
right to freedom of association was breached in that documents relating
to an association which he founded were unjustifiably included in the
case-file.
The applicant complains that he had no effective remedy to complain
about breaches of his rights as his complaints to higher authorities were
routinely transmitted to be dealt with by those persons about whom he had
complained.
Under Article 14 of the Convention the applicant complains that he
was discriminated against in the enjoyment of his rights under the
Convention on the grounds of his personal wealth. He alleges that the
Siedlce Regional Public Prosecutor T.Z. told him that he would remain in
custody as he was rich.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 February 1994 and registered on
10 October 1994. The applicant was informed in the registration letter
that the proceedings of the Commission are confidential and the contents
of case-file, including the observations of the parties and
correspondence, must not be made public.
On 6 April 1995 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
By letter of 8 November 1995 the Government expressed their concern
about the publicity in the Polish media concerning the applicant's case
before the Commission. In particular, in a November issue of the
newspaper "Smiechu Warte" a copy of the Commission's letter of
7 August 1995 to the applicant was published. This letter informed the
applicant that the request of the Government for an extension of the
time-limit for the submission of the observations had not been granted.
In a neighbouring column a critical comment about the case was published,
signed by L. B., a candidate in the presidential election. Both L.B. and
the applicant are on the editorial board of the newspaper. In his
comment L.B. strongly criticised the Government for having failed to
submit the observations in time and called the public servants
representing the Government in the proceedings before the Commission
"uneducated and corrupt". The Government stated that the applicant must
have been directly and deliberately involved in publishing the letter as
he was on the editorial board. The Government further drew the
Commission's attention to the fact that the newspaper concerned
disseminates extremist anti-semitic views. They stated that the article
in question created an imbalance in informing the general public of the
case before the Commission. This breach of confidentiality was even more
aggravated by its political context, namely the fact that it had been
committed during the presidential campaign and used for the purposes of
that campaign. It could seriously jeopardise the credibility of the
Convention system in Poland. The Government requested that the
Commission should reject the application on the ground of abuse of the
right of petition within the meaning of Article 27 para. 2 of the
Convention.
On 20 November 1995 the Government submitted their observations.
By letter of 22 November 1995 the applicant was requested to comment
on the confidentiality issue before 30 November 1995.
By letter of 27 November 1995 the Government further informed the
Secretariat that in May 1995 the publication "Forum against Corruption"
published a letter of 10 April 1995 from the Secretariat of the
Commission in which the applicant was informed of the Commission's
decision to communicate the case to the Government. The Government
pointed out that the responsibility of the applicant for publication of
this letter was well established as the applicant was on the editorial
board of the newspaper. The Government reiterated their deep concern
about the publication of the Secretariat's two letters in newspapers and
leaflets of wide distribution and about abusing the applicant's case for
political purposes in the course of the presidential campaign. They
indicated that in comments to the letters their authors resorted to
insulting statements against the Government and accused the civil
servants responsible for dealing with the applications to the Commission
of corruption and incompetence.
By letter of 30 November 1995 the applicant replied that the
Commission's letter of 7 August 1995 could have been published as it only
concerned the proceedings before the Commission and not the merits of the
case. He submitted that it had not been stated in this letter that it
was confidential. He further submitted that there was a bill being
discussed in the Polish Parliament with the alleged purpose of limiting
the right of individual petition. He made general allegations about
violations of human rights in Poland by the State.
On 10 January 1996 the applicant submitted his observations in
reply.
REASONS FOR THE DECISION
In view of the information provided in the Government's letters of
8 November 1995 and 27 November 1995 and the applicant's letter of 30
November 1995, the Commission finds it necessary to consider whether it
is justified to continue the examination of the present application
within the meaning of Article 30 para. 1 of the Convention.
Article 30 para. 1, so far as relevant, reads as follows:
"The Commission may at any stage of the proceedings decide to
strike a petition out of its list of cases where the circumstances
lead to the conclusion that : ...
c. for any other reason established by the Commission, it is
no longer justified to continue the examination of the
petition.
However, the Commission shall continue the examination of a petition
if respect for human rights as defined in this Convention so
requires."
The Commission notes that the applicant made public confidential
information concerning the proceedings before the Commission. In
particular the applicant disclosed the Commission's decision to
communicate the case to the respondent Government by quoting in extenso
the Commission's letter informing him thereof on a strictly confidential
basis. He further published the letter in which an extension of the
time-limit for submission of the observations by the Government had been
refused and criticised the delays in the proceedings on the part of the
Government. The applicant must have been aware of the confidentiality
of the proceedings as he had been informed thereof.
The Commission considers that the parties are obliged to respect the
confidentiality of its proceedings. In this respect, the Commission
refers to Article 33 of the Convention which provides that the
"Commission shall meet in camera" and to Rule 47 of its Rules of
Procedure. In the present case, the applicant's responsibility for
disclosure of confidential information concerning the proceedings before
the Commission has been established as the applicant is on the editorial
boards of both newspapers concerned. The Commission finds that the
applicant's conduct constitutes a serious breach of confidentiality. The
explanations given by the applicant do not disclose any circumstances
which could justify his conduct.
In these circumstances, the Commission considers that it is no
longer justified to continue the examination of the application within
the meaning of Article 30 para. 1 (c) of the Convention (c.f., mutatis
mutandis, No. 20915/92, Comm. Report 3.3.95, D.R. 80-A, p. 74).
Moreover, as regards the issues raised in the present case, the
Commission finds no reasons of a general character affecting respect for
human rights, as defined in the Convention, which require the further
examination of the application by virtue of Article 30 para. 1 in fine
of the Convention.
In view thereof, the Commission finds that it is not necessary to
consider whether the facts of the case amount to an abuse of the right
of petition within the meaning of Article 27 para. 2 of the Convention.
For these reasons, the Commission by a majority
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (S. TRECHSEL)
Full & Egal Universal Law Academy